Decision Date: 11/22/95 Archive Date:
11/22/95
DOCKET NO. 93-26 354 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
Entitlement to service connection for a back disability.
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
residuals of a head injury, including headaches and
blackouts.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
R. K. ErkenBrack, Counsel
INTRODUCTION
The veteran served on active duty from July 1954 to January
1958.
The veteran claimed entitlement to a permanent and total
disability rating for pension purposes in June 1992. The
regional office (RO) denied this claim by rating action in
July 1992. He appealed this determination later in July
1992 but specifically withdrew the issue in October 1992.
The issue was not developed for appeal by the RO and is not
before the Board.
The veteran also has claimed entitlement to an increased
(compensable) rating for a scar from a laceration of the
right temporoparietal section of the scalp in correspondence
dated in October 1992 and, apparently, service connection
for eye and hearing disabilities in the course of the
October 1992 hearing. These issues have not been
adjudicated by the RO or developed for appellate review.
Accordingly, these issues are not currently before the Board
and are referred to the RO for appropriate action.
The Board has rephrased the issue as to residuals of a head
injury, to include headaches and blackouts, because the RO
did not deal with the issue of new and material evidence to
reopen the claim following an adverse decision in August
1989 that had become final. It is incumbent on the Board to
consider this threshold issue in this decision. See Manio
v. Derwinski, 1 Vet.App. 140 (1991).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in substance, that he has a back
disability, headaches and blackouts that resulted from head
and back injuries sustained during service. He describes
constant back pain and migraine headaches stemming from that
injury. He argues that the Department of Veterans Affairs
(VA) has a duty to assist him by providing a rating
examination for his headaches and blackouts and a medical
opinion as to whether they are due to an inservice head
injury. He specifies dizziness, blackouts, fainting spells,
constant headaches, and constant back pain in support of his
claims.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the claim to establish service
connection for a back disability is not well grounded and
that new and material evidence has not been submitted in
order to reopen the claim of entitlement to service
connection for residuals of a head injury, to include
headaches and blackouts.
FINDINGS OF FACT
1. The claim to establish service connection for a back
disability is without medical evidence of a nexus between
any inservice disease or injury and current back
dysfunction.
2. The RO denied service connection for residuals of a head
injury, other than a scalp laceration, in August 1989 and,
after the Notice of Disagreement and Statement of the Case,
the veteran did not timely perfect his appeal.
3. The evidence added to the record since the August 1989
decision, to include that of headaches and dizziness, either
does not relate, or is not competent to relate, any current
disorder, other than a scalp laceration, to the head injury
the veteran experienced during service.
CONCLUSIONS OF LAW
1. The claim to for service connection for a back
disability is not well grounded. 38 U.S.C.A. §§ 1110, 1131,
5107(a) (West 1991).
2. The August 1989 decision of the regional office, which
denied service connection for residuals of a head injury,
other than a scalp laceration, became final; new and
material evidence has not been submitted and the claim is
not reopened. 38 U.S.C.A. §§ 5107(a), 7105 (West 1991); 38
C.F.R. §§ 3.104(a), 20.200, 20.302 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The available service medical records show, on the report of
enlistment examination, that the veteran reported a history
of frequent or severe headaches, described as ordinary
headaches. In January 1956, he was hospitalized for
treatment of a laceration of the scalp in the right temporo-
parietal region. While he was at a bar he had been hit in
the head with a beer mug by another airman. He immediately
lost consciousness for about three to five minutes and then
lost consciousness as he was being carried out for about 10
minutes. He was taken to the hospital by ambulance. He had
lost approximately a pint of blood. The laceration was
approximately five centimeters long. Palpation revealed no
foreign body. There was no evidence of injury of the bones,
eyes, ears, neck, chest or extremities. There was no sign
of neurological deficit. There was no artery involvement.
X-ray examination of the skull was termed negative with no
evidence of fracture. The skin sutures were removed the
next day and the wound was healing well. He was discharged
to duty the day after that. The final diagnosis was a
lacerated wound of the right temporo-parietal region with no
artery or nerve involvement. No complaint, finding or
diagnosis of headaches, blackouts or back injury was
indicated. Following a fall down some stairs in March 1956
and a fall on some stairs in September 1956, there was no
indication of any back disability. The separation
examination indicated no headaches, blackouts or back
abnormality.
During VA hospitalization in November 1979 for an irrelevant
condition, he indicated experiencing pain off and on in the
lumbosacral spine area on the general physical examination.
He denied blackouts. There was no other information
provided relative to the back and there was no complaint,
finding or diagnosis involving headaches.
The veteran was hospitalized by VA in July 1989 for a single
episode of loss of consciousness after walking about a mile.
The event was slow in onset and involved a period of
dizziness lasting several minutes prior to loss of
consciousness. No headache or back abnormality was
indicated. He was found to be in sinus bradycardia. He
stabilized with no further episodes of syncope. New onset
of syncope and mitral insufficiency were diagnosed.
In August 1989, the RO denied entitlement to service
connection for residuals of a head injury including
blackouts. Service connection was granted for a scalp
laceration. Appropriate notice was provided the veteran and
he filed a timely Notice of Disagreement. A Statement of
the Case was prepared on the issue in October 1989 and sent
to him, following which he failed to submit a timely
substantive appeal. Accordingly, the August 1989 rating
decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§
3.104(a), 20.200, 20.302. He sought to reopen his claim in
October 1991.
VA outpatient clinical records dated in August 1991 show
that the veteran had low back pain going back to an injury
he sustained on the job in 1964 when he reportedly was
pinned between a fork lift and a loading dock. X-ray
examination revealed moderate to marked degenerative changes
involving the lower lumbar spine and decreased disc spaces
at L4-5 and L5-S1. There were lateral hypertrophic changes
at L2-3. There was interspace sclerotic facet arthropathy
at L5-S1. Possible spondylolysis at this level was noted.
A magnetic resonance imaging (MRI) scan of the lumbosacral
spine in December 1991 revealed degenerative changes at L5-
S1 intervertebral disc level and mild diffuse disc bulges at
L3 to S1. Disc disease was noted. A general physical
examination in January 1992 indicated that he suffered from
headaches once a week which were relieved by Tylenol and
dizziness once or twice a week which lasted for a few
seconds. Lumbosacral radiculopathy was reported.
VA MRI scan of the lumbar spine in June 1992 revealed
degenerative changes of the discs with anterior herniated
nucleus pulposus at L4-5 of the lumbar spine. In August
1992, sciatica was noted.
A transcript (T.) of the veteran's personal hearing before a
hearing officer at the RO in October 1992 is of record. His
wife was also present and testified. He testified about the
details of his head wound in the attack in January 1956,
during service. T. at 1. He stated that he started feeling
funny sensations around the laceration after the head wound;
that severe blackouts started in early 1958; that sharp back
pains started shortly following service when he got in and
out of his truck or when he picked up and lifted any thing
heavy; and that headaches and blackouts from the head wound
continued. T. at 2. His wife testified that she had known
him since shortly following his service, since 1958; that he
had always needed medication for daily headaches; and that
he had always had episodic dizziness and blackouts, which he
experienced daily. T. at 3.
In November 1992, the veteran's sister-in-law reported that
he had complained of dizziness and headaches since February
1958. She stated that the veteran's wife, her sister, had
told her of his having dizzy spells and pains around his
scar and he had gone to a VA hospital for treatment.
II. Analysis
A. Back Disorder
The threshold question that must be resolved with regard to
a claim is whether the veteran has presented evidence that
the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A
well grounded claim is a plausible claim, meaning a claim
that appears to be meritorious. See Murphy, 1 Vet.App. at
81. An allegation of a disorder that is service connected
is not sufficient; the veteran must submit evidence in
support of the claim that would "justify a belief by a fair
and impartial individual that the claim is plausible." See
38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609,
611 (1992). The quality and quantity of the evidence
required to meet this statutory burden of necessity will
depend upon the issue presented by the claim. Grottveit v.
Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim to
be well grounded, there must be competent (medical) evidence
that the veteran currently has the claimed disability. See
Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). There
must also be either lay or medical evidence of incurrence or
aggravation of a disease or injury in service. The veteran
must also submit medical evidence of a nexus between the in-
service disease or injury and the current disability. See
Caluza v. Brown, 7 Vet.App. 498 (1995). Where the issue is
factual in nature, e.g., whether an incident or injury
occurred in service, competent lay testimony, including the
veteran's solitary testimony, may constitute sufficient
evidence to establish a well grounded claim; however, if the
determinative issue is one of medical etiology or a medical
diagnosis, competent medical evidence must be submitted to
make the claim well-grounded. See Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). A lay person is not competent to
make a medical diagnosis or to relate a medical disorder to
a specific cause. See Espiritu v. Derwinski, 2 Vet.App.
492, 494 (1992). If the veteran fails to submit evidence in
support of a plausible claim, the VA is under no duty to
assist the veteran in development of the claim. See
Grottveit at 93. Furthermore, a claim that is not well
grounded must be dismissed because it does not present a
question of fact or law over which the Board has
jurisdiction. See 38 U.S.C.A. § 7105(d)(5) (West 1991); See
also Boeck v. Brown, 6 Vet.App. 14, 17 (1993).
The Board finds that the veteran has not submitted a well
grounded claim for service connection for a back disability.
The veteran's assertion and that of his wife that his back
disability is related to inservice injury is implausible,
since, as laypersons, they are not competent to make such a
medical determination. Such assertions are unsupported by
any of the relevant medical evidence on file. In other
words, the medical evidence, including the service medical
records, do not show any connection between any inservice
disease or injury and current back disablement. Therefore,
the claim that current back dysfunction is relatable to
inservice injury is not well-grounded and the appeal based
thereon must be dismissed. The Board notes that the RO
denied the claim on basically the same premise as here: That
the medical evidence did not show that current back
disablement was related to any disease or injury during
service, and informed the veteran to this effect and of the
need to submit such evidence. Therefore, the requirement of
notice as to what evidence was needed in support of the
claim is met in this case. See Robinette v. Brown, 8
Vet.App. 69 (1995).
B. Head Injury Residuals
The RO's denial of service connection for residuals of a
head injury, other than a scalp laceration, in August 1989
became final when the veteran did not perfect his appeal
following the statement of the case. 38 U.S.C.A. § 7105; 38
C.F.R. §§ 3.104(a), 20.200, 20.302.
[T]o reopen a claim, a claimant must submit new and
material evidence. 38 U.S.C.A. § 5108 (West 1991). "New"
evidence is "evidence which is not . . . merely cumulative
of other evidence on the record." Colvin v. Derwinski, 1
Vet.App. 171, 174 (1991). "Material" evidence is evidence
that "is relevant and probative of the issue at hand." Id.
Further, to be new and material, evidence must, when taken
together with all the evidence of record, create a
reasonable possibility that the outcome would be changed.
Id.; see Manio v. Derwinski, 1 Vet.App. 140 (1991). Warren
v. Brown, 6 Vet.App. 4, 5-6 (1993).
In August 1989, only a laceration of the scalp was found to
be a residual of the head injury the veteran experienced in
service. In an attempt to reopen his claim, the veteran has
submitted medical evidence showing various disorders and has
contended and testified that he has blackouts, dizziness,
constant headaches and seizures as a result of the head
injury in service. The medical evidence, however, does not
relate any of these claimed disorders to the head injury in
service and the veteran and his wife are not competent, as
laypersons, to make such a medical determination.
Similarly, the veteran's relative's report that he has any
such disorders is not competent evidence to relate the
disorders to the head injury in service. Under the case law
set forth in the discussion concerning the issue of service
connection for a back disorder, the evidence received since
the August 1989 decision would not be sufficient to make the
claim for service connection for residuals of a head injury
well grounded. Therefore, such evidence cannot rise to the
level of new and material to reopen the claim.
ORDER
The claim for service connection for a back disability is
dismissed.
New and material evidence not having been submitted to
reopen a claim for service connection for residuals of a
head injury, to include blackouts and headaches, service
connection remains denied.
WILLIAM J. REDDY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
Supp. 1995), a decision of the Board of Veterans' Appeals
granting less than the complete benefit, or benefits, sought
on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402 (1988). The date that appears on
the face of this decision constitutes the date of mailing
and the copy of this decision that you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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